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Managing the Use of Search Technology in Complex Litigation In House
Recent studies have shown that lawyers lack the training necessary for using search technology in complex litigation. (Please see, for example, "Mandating Reasonableness in a Reasonable Enquiry, by Patrtick Oot, et al, Denver University Law Review, Vol. 87:2 2010, pp 533-559). This conclusion should not come as a surprise to experts in the field. Search technology is not typically part of legal education. Presumably, just training to be a lawyer is demanding enough without adding extraneous burdens.
So, the question then becomes, should a lawyer who joins a firm that specialises in complex litigation be sent on a search technology training course? To answer that, let's turn the tables for a moment. Should a layman faced with a complicated legal issue feel compelled to train as a lawyer? Does it not make more sense for a lawyer to practise law and for a specialist in search technology to ply his trade, bringing together these two areas of expertise when the situation warrants it?
Herein, however, lies the rub, at least for lawyers in private firms. Inefficiencies in complex litigation generate huge fees. Let's take an example from the Denver Law Review article cited above. The authors note that in a case involving Verizon:
"Verizon responded to a governmental request for additional information for material relevant to the proposed acquisition; also known as a ‘Second Request' under the Hart-Scott-Rodino Antitrust Improvements Act of 1976. To respond to the Second Request, Verizon completed a voluminous document review project: the company collected documents from 83 employees in 10 states, consisting of 1.3 terabytes of electronic files in the form of 2,319,346 documents. The collection included close to 1.5 million email messages, 300,000 loose files, and 600,000 scanned documents. After eliminating duplicates, 1,600,047 items were submitted for attorney review. It took the attorneys four months, working sixteen hours per day seven days per week, for a total cost of $13,598,872.61 or about $8.50 per document. This sum included the fees of outside counsel specifically assigned to document review tasks (but not attorneys working on other aspects of the case), and hourly fees billed by contract attorneys hired specifically for the review."
The authors then go on to describe their controlled replication of the above exercise, using two organizations that specialize in search technology. In both instances, the process noted above that took four months was completed in only four weeks, at what would have been a savings to the corporation of several million dollars.
The fact is, however, that most private law firms are unwilling to forego the bloated fees that inefficiency generates. As Susan Hackett (Senior Vice President and General Counsel, Association of Corporate Counsel), has remarked: "In-house legal departments talk about the need to change the way that their external counsel bill and budget for work, but where are the incentives for law firms to change?" (From Georgetown Law: "Law Firm Evolution-Brave New World or Business as Usual?" Reported by: Gregory P. Bufithis, Esq. (Founder/Chairman, The PosseList.com) and Lisa DiMonte (Chief Executive Officer, MyLegal.com), 23 March 2010.)
One answer to this dilemma, of course, is for corporate counsel to manage this process in house by bringing in search technology specialists to work with their in-house legal team. There is, in fact, no reason that in-house lawyers should not insist upon this approach as a pre-condition to hiring a private law firm to assist them with a complex litigation matter. By using such a division of labour, the business obtains the best value for money: a highly trained litigator and an equally proficient search technology specialist, both doing what they do best.